The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1887-12-27

| protected by endorsement ana say
nothing.
1t is urged on behalf of these mort
gagees, that not having been made
parties to the original bill, which
prayed for the appointment of a re-
ceiver, the Court is now without
jurisdiction to create lien which
shall have priority over their liens
The general jurisdiction of the
Court to appoint a receiver of part
nership property upon the death OF
a partner in a proper showing of the
necessity for it is not questioned.
Nor is it questioned by the mort
gagees that the peculiar circum-
stances of this case, of sugar plant
alton owned by partnership, on one
partner dying the surviving partner
and the executors not having funds
and not being willing to assume the
responsibility vi carrying ton, would
not justify the appointment of re-
ceiver in the interests of the devisees
and of the unsecured creditors.
A sugar estate, when once it has
stopped operations, has but little
value over the value of the separate
items of property composing it. Its
value consists in what it can pro-
duce, and if it is suffered to lie idle
and crops are not kept in cultivation
and. preparation for successive crops
neglected, it depreciates most rap
idly.
The necessity of keeping the work
of sugar plantation moving, is as
essential to its preservation as pro-
ductive property, as a railroad, with
this difference only, that the public
right to have railroad kept up for
its convenience does not exist in the
case of a plantation.
In August, 1885, the only alterna-
tive was an immediate sale by the
executors, with the consent of the
mortgages, or the appointment of a
receiver, to run it until it could be
wound up and its debts paid from
the profits or eventually sold to adj
vantage.
What was the object then, of the
receivership in this case? None of
the mortgages had taken possess
ion. Their mortgages were not due
and they were content with their
security. l can come to no other
conclusion than this: that the object
of the receivership was to enable the
unsecured creditors and the heirs to
have the plantation worked so as to
pay the creditors and save something
for the heirs.
The mortgages did not fear that
the security would prove insufficient,
or that the mortgagors were insol-
vent, which are the grounds upon
which a receiver may be appointed
in aid of a mortgagee-they took no
steps to have a receiver appointed,
relying entirely upon their security.
l do not think it is an answer to say
that as they were benefited by the
plantation being continued in opera
ton for two years, they should adj
nit the lien, for the expenses for
running the same to priority over
their own liens.
If the plantation had been stopped
for want of funds, they undoubtedly
would have either taken possession
or have applied for a receiver.
But if they were sure of their
money in 1885, they are in no better
position in 1887.
I think the extent of the lien
which the receivers disbursements
had was over the receipts alone and
not over the corpus of the estate
The advantage of this receivership
to the unsecured creditors, on. S.
Grinbaum & Co. } is manifest.
1t afforded an opportunity to as
certain by actual trial whether the
plantation could be worked out of
debt, and they made the advances,
since they were to take all the profits |
of what their expenditures, through |
the receiver, produced. OF this the
did not and could not |
well complain, as their interest was
paid.
Upon a review of the whole case,
/ think that it was not contemplated |
that any excess of expenditure over
receipts was to be recoverable out of |
the corpus of the estate over the
Certainly the order appointing the
receiver did not so read, and there
was nothing on the record TO apprise
the mortgages that their liens were
liable to be defeated by the contin-
gency Of the plantation under the
running behindhand.
Why, then, were the expenditures
to be made by the receiver subjected
to the scrutiny and allowance by the
Court? He was not allowed to make